United States District Court, E.D. Missouri, Eastern Division
AMBER J. CRAMER, Plaintiff,
EQUIFAX INFORMATION SERVICES, et al, Defendants.
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant Bay Area Credit
Service, LLC's motions to exclude the testimony of Dr.
Stan Smith (Doc. 80) and Evan Hendricks (Doc. 82). Plaintiff
Amber Cramer opposes both motions. For the following reasons,
the motions will be granted in part and denied in part.
2, 2018, plaintiff filed a six-count petition against
defendants Equifax Information Services, LLC
("Equifax"), Bay Area Credit Service, LLC
("Bay Area"), and Consumer Collection Management,
Inc. ("CCM") pursuant to the Fair Credit Reporting
Act ("FCRA"), 15U.S.C. §§ 1681 et seq,,
the Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. §§ 1692 et seq,, and the Telephone
Consumer Protection Act ("TCPA"), 47 U.S.C.
§§ 227 et seq. On January 28, 2019, plaintiff filed
a joint stipulation of dismissal with prejudice as to
defendant CCM, which the Court granted. (Docs. 41, 42). On
June 18, 2019, plaintiff filed a stipulation of dismissal
with prejudice as to defendant Equifax, which the Court
granted. (Docs. 68, 70). The only remaining claims in this
action are the FDCPA (Count II) and FCRA (Count IV) claims
against defendant Bay Area.
alleges that in July of 2017, she discovered inaccurate
delinquent accounts on her credit report regarding three
unpaid medical bills from SLUCare, St. Alexius Hospital, and
American Medical Response. After investigating these charges,
plaintiff discovered that an individual she does not know
used plaintiffs name, date of birth, and social security
number in December of 2016 to incur those charges. Plaintiff
filed identity theft police reports, disputed the debts with
the major credit reporting agencies, and added a fraud alert
to her credit report. Despite plaintiffs efforts to remove
the false information, defendant Bay Area allegedly continued
to contact her on her cell phone to collect on the American
Medical debt. Plaintiff alleges the collection attempts
persisted even after she had advised Bay Area's
representatives that she was the victim of identity theft.
Count II, plaintiff asserts defendant Bay Area violated the
FDCPA by making false, misleading, and deceptive statements
in an effort to collect the debt; continuing to list the debt
on plaintiffs credit report even after it was aware of facts
demonstrating the debt was the result of identity theft; and
using unfair and unconscionable means to collect the debt.
Count II seeks actual damages, statutory damages, and costs
and attorney's fees.
Count IV, plaintiff asserts defendant Bay Area violated the
FCRA by willfully and negligently failing to investigate the
dispute and delete the debt from its reports despite knowing
or having reason to know it was inaccurate. Count IV seeks
actual damages, statutory damages, punitive damages, and
costs and attorney's fees.
prove Bay Area's alleged noncompliance with the FCRA and
the resulting damages, plaintiff intends to offer the
testimony of Dr. Stan Smith and Evan Hendricks as expert
witnesses. Bay Area moves to exclude the testimony of both
admission of expert testimony is governed by Federal Rule of
Evidence 702. In Daubert v. Merrell Dow Pharms.,
Inc., the United States Supreme Court interpreted Rule
702 to require district courts to be certain that expert
evidence based on scientific, technical or other specialized
knowledge is "not only relevant, but reliable." 509
U.S. 579, 589 (1993). The district court must make a
"preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue." Id. at 592-93.
Eighth Circuit Court of Appeals has stated that proposed
expert testimony must meet three criteria to be admissible
under Rule 702. "First, evidence based on scientific,
technical, or other specialized knowledge must be useful to
the finder of fact in deciding the ultimate issue of fact.
This is the basic rule of relevancy." Lauzon v.
Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).
"Second, the proposed witness must be qualified to
assist the finder of fact." Id. (citation
omitted). "Third, the proposed evidence must be reliable
or trustworthy in an evidentiary sense, so that, if the
finder of fact accepts it as true, it provides the assistance
the finder of fact requires." Id. (internal
quotation marks omitted). To meet the third requirement, the
testimony must be "based on sufficient facts or
data" and be "the product of reliable principles
and methods, " and the expert must have "reliably
applied the principles and methods to the facts of the
case." Fed.R.Evid. 7O2(b)-(d).
702 reflects an attempt to liberalize the rules governing the
admission of expert testimony[, ]" Weisgram v.
Marley Co., 169 F.3d 514, 523 (8th Cir. 1999), and
"favors admissibility if the testimony will assist the
trier of fact." Clark ex rel. Clark v.
Heidrick, 150 F.3d 912, 915 (8th Cir. 1998). Doubt
regarding "whether an expert's testimony will be
useful should generally be resolved in favor of
admissibility." Id. (citation and internal
Rule 702, the trial court has gatekeeping responsibility to
"ensur[e] that an expert's testimony both rests on a
reliable foundation and is relevant to the task at
hand." Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141 (1999) (citing Daubert, 509 U.S. at 597).
"When making the reliability and relevancy
determinations, a district court may consider: (1) whether
the theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer
review or publication; (3) whether the theory or technique
has a known or potential error rate and standards controlling
the technique's operation; and (4) whether the theory or
technique is generally accepted in the scientific
community." Russell v. Whirlpool Corp., 702
F.3d 450, 457 (8th Cir. 2012) (citing Daubert, 509 U.S. at
593-94). "This evidentiary inquiry is meant to be
flexible and fact specific, and a court should use, adapt, or
reject Daubert factors as the particular case
demands." Unrein v. Timesavers, Inc., 394 F.3d
1008, 1011 (8th Cir. 2005). "There is no single
requirement for admissibility as long as the proffer
indicates that the expert evidence is reliable and